Muliango & 2 others v Andai (Environment and Land Appeal E039 of 2023) [2025] KEELC 5129 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed courts can set aside their own ex parte orders when a party was not heard, despite the ban on second reviews.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court had jurisdiction to hear and determine the application dated 27th September 2023.
- 2.Whether there was merit in the application dated 27th September 2023.
- 3.Whether the appellants' application dated 20th April 2023 met the threshold for review.
Key legal issues
#Jurisdiction to entertain an application to set aside/review a ruling made on a review application
Although Order 45 Rule 6 bars a second review, the trial court had jurisdiction under its inherent powers (s.3A Civil Procedure Act) and Order 51 Rule 15 to set aside its own ex parte order where a party was denied a fair hearing.
The respondent's reply and submissions were on file but not considered when the ruling of 23.5.2023 was delivered ex parte. The court held that the right to be heard, codified in Article 50, cannot be defeated by Order 45 Rule 6, and that inherent powers exist to correct an apparent injustice by setting aside ex parte orders.
Merits of the application dated 27th September 2023
The ex parte ruling of 23rd May 2023 was properly set aside because it violated the respondent's right to a fair hearing.
Having found that the ruling of 23rd May 2023 was delivered without considering the respondent's replying affidavit and submissions, the court held that the denial of an opportunity to be heard was a good reason for setting the orders aside, and the subsequent dismissal of the 20.4.2023 review application was also proper.
Whether the appellants' application dated 20th April 2023 met the threshold for review
It did not: it was filed after inordinate delay (six months), pleaded none of the Order 45 Rule 1 grounds, and was a disguised appeal against the ruling of 13th October 2022.
The application was based on the appellant's mere displeasure with the court's ruling on an objection to production of the title deed. None of the grounds of review (new matter, error apparent on the face of the record, sufficient reason) was pleaded, and the proper remedy was an appeal.
Legal principles established
#- A court is barred from entertaining a second application for review of an order made on an application for review.
- A court has inherent power, notwithstanding the bar on second reviews, to set aside an ex parte order where a party was condemned unheard, so as to vindicate the right to a fair hearing.
- Review is not a disguised appeal; a party aggrieved by an interlocutory decision must appeal rather than seek review.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- 2.The matter to be determined before the trial court within six (6) months of the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Butali Principal Magistrate's Court (ELC Case No. 1 of 2021)
- ELC Case No. 1 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the ruling of the Principal Magistrate's Court in an Environment and Land matter
Relief refused
#Setting aside of the trial court's ruling of 14th November 2023 and dismissal of the respondent's application dated 27.9.2023
The trial court had inherent power to set aside its ex parte order of 23rd May 2023 as the respondent had been condemned unheard; the appeal lacked merit
Sustaining of the marking of the title deed and green card as PMFI3 and PMFI4 pursuant to the ruling of 23.5.2023
The ruling of 23rd May 2023 was properly set aside as it was made ex parte in violation of the respondent's right to a fair hearing
Transfer and/or re-allocation of Butali PM ELC No. 1 of 2021 to another magistrate
Allegations of bias not sustained; instead the court directed expeditious disposal before the trial court
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The provision of Order 45 Rule 6 of the Civil Procedure Rules is mandatory that a second application for review shall not be entertained.
I do not think that provisions of Order 45 Rule 6 would be the basis of denying a party the opportunity to be heard. Under Order 51 Rule 15 of the Civil Procedure Rules, the court has jurisdiction to set aside an order made ex parte.
The upshot is that I find no merit in the appeal, which I hereby dismiss with costs to the respondent.
I direct that this matter shall be determined before the trial court within six (6) months of this judgment.
a review does not lie where a party disagrees with the court’s position on an issue.
Issues in the judgment
#Judgment contains inconsistent internal dates referring to the same application/decision (e.g. 20.4.2023 vs 20th April 2024; 13.10.2022 vs 13th October 2023/2025; 23rd May 2025 vs 23rd May 2023)
The respondent's complaint is described as relating to the ruling of 27th September 2023 in one passage, which appears to be an error for 23rd May 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muliango & 2 others v Andai (Environment and Land Appeal E039 of 2023) [2025] KEELC 5129 (KLR)", Case Analysis (2025). Butali Magistrates Court ELC Appeal re ruling of 14th November 2023 (arising from Butali PM ELC Case No. 1 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5129/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.